Absence from work
due to incarceration is not misconduct that will disqualify an employee on a
per se basis from establishing eligibility for the receipt of unemployment
compensation.

Under the unique
facts of this case, an employee who is absent from work due to incarceration
has not engaged in misconduct that will disqualify her from the receipt of
unemployment compensation, where employee made arrangements to continue her
existing employment while on work release, but her employer failed to verify
her employment.

Reversed.

Heard,
considered, and decided by the court en banc.

O P I N I O N

MEYER, Justice.

Appellant Cassandra Jenkins seeks reversal of the court
of appeals’ decision affirming her disqualification from the receipt of
unemployment compensation on grounds of a discharge for misconduct. At issue is whether absenteeism due to
incarceration is misconduct when the employer fails to verify employment for
purposes of a work-release program.
Under the unique facts of this case, we conclude that the employee’s
absence from work was not misconduct, and we reverse the court of appeals.

Jenkins began working for respondent American Express
Financial Corporation (employer) as an insurance specialist on November 27,
2000. In January 2004 she was convicted
of assaulting a nurse while being treated for a broken ankle. She was then sentenced to 30 days in jail
with work-release privileges under the Huber law, Minn. Stat. § 631.425
(2004). Jenkins was scheduled to begin
her sentence on April 18, 2004.

Before she began
serving her sentence, Jenkins was told by her employer that the employer was
going to cooperate with her work-release privileges and provide verification of
her employment to the workhouse. She
twice discussed her conviction and sentence with Joel Hansen, her
supervisor. According to Jenkins, Hansen
indicated that employees had participated in work release in the past and that
Jenkins would be able to maintain her employment while on work release.

Jenkins reported
to the workhouse on Sunday, April 18, 2004, at which time she discovered that
Hansen had not verified her employment, so she was not able to report for work
the next day. Jenkins made repeated
attempts over the next several days to contact Hansen and secure his
cooperation. She was only able to speak
to him on one occasion at which time he was noncommittal and indicated he
“would get back to her.” A friend of
Jenkins’ and Jenkins’ social worker, David Huberty, also attempted to reach
Hansen.[1] Huberty left Hansen a voicemail message
“clearly outlining that all he had to do was to make one phone call to the
[w]orkhouse to facilitate Ms. Jenkins’ []work release[]. [Huberty] even left him the name of the
contact person at the [w]orkhouse and that person’s direct phone number.” The employer did not appear at the administrative
hearing on Jenkins’ case so the employee’s version of these events is
undisputed.

On April 22, 2004,
the employer sent a letter to Jenkins advising her that if she did not return
to work on Monday, April 26, the employer would assume Jenkins voluntarily
resigned. Still lacking verification of
her employment, Jenkins was unable to report for work on April 26, and her
employment was terminated.

Jenkins filed an
application for unemployment benefits and established a benefit account with
the Department of Employment and Economic Development. The department adjudicator determined that
Jenkins had been discharged by her employer for misconduct and therefore was
disqualified from the receipt of unemployment benefits. Jenkins appealed. Following an evidentiary hearing, the
unemployment law judge (ULJ) found that Jenkins was discharged for employment
misconduct because she was unavailable for work due to her incarceration. On further appeal, a senior unemployment
review judge declined to conduct further proceedings and adopted the decision
of the ULJ as the final agency decision pursuant to Minn. Stat. § 268.105,
subd. 2a (2004).

The court of
appeals affirmed the department’s denial of benefits. Jenkins v. Am. Express Fin. Corp., 702
N.W.2d 908, 914 (Minn.
App. 2005). The court determined that
the evidence in the record reasonably supported the ULJ’s finding that Jenkins
had been discharged for absenteeism. Id. at
912-13. The court acknowledged that
Hansen’s inaction “may have played a role” in creating Jenkins’ unemployment
but found that Jenkins was not among those the unemployment insurance program
was designed to assist: “workers who are unemployed through no fault of
their own.” Id. at 913 (quoting Minn. Stat. §
268.03, subd. 1 (2004)). “[T]he fact
remains that [Jenkins] engaged in the behavior that led to her
incarceration.” Jenkins, 702
N.W.2d at 913. The court also found that
while it could not “condone the actions of the employer,” Hansen’s undisputed promise
to allow Jenkins to continue her employment while on work release created “no
duty to call and verify [Jenkins’] employment.”
Id.at 914.

Under the standard
of review applicable to employment benefit cases, we examine a senior
unemployment review judge’s factual findings in the light most favorable to the
decision, and we will not disturb those findings as long as there is evidence
that reasonably tends to sustain them. Schmidgall v. FilmTec Corp., 644 N.W.2d
801, 804 (Minn. 2002); Markel v. City of Circle Pines, 479 N.W.2d 382, 383-84 (Minn. 1992).[2] Whether an employee has engaged in conduct
that disqualifies him from unemployment benefits is a mixed question of fact
and law. Schmidgall, 644 N.W.2d at 804.
Specifically, the determination of whether an employee was properly
disqualified from receipt of unemployment compensation benefits is a question
of law on which we are free to exercise our independent judgment. Ress v.
Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

We have noted that
“[t]he unemployment compensation statute is remedial in nature and
must be liberally construed to effectuate the public policy set out in
Minn. Stat. § 268.03,” which states that the unemployment benefits
provisions are “‘to be used for the benefit of persons unemployed through no
fault of their own.’” Prickett v. Circuit Science, Inc., 518
N.W.2d 602, 604 (Minn.
1994) (citing Minn. Stat. § 268.03 (1992)).
We have stated that this policy urges us to narrowly construe the
disqualification provisions. Id.

An otherwise
eligible employee will be disqualified from the receipt of unemployment
benefits for a variety of reasons, including a discharge for employment
misconduct or a discharge for aggravated employment misconduct. Minn.
Stat. § 268.095, subd. 4 (Supp. 2003).[3] Employment misconduct is defined as “any
intentional, negligent, or indifferent conduct, on the job or off the job (1)
that evinces a serious violation of the standards of behavior the employer has
the right to reasonably expect of the employee, or (2) that demonstrates a
substantial lack of concern for the employment.” Minn.
Stat § 268.095, subd. 6(a) (Supp. 2003).
But “[i]nefficiency, inadvertence, simple unsatisfactory conduct, * * *
[or] conduct an average reasonable employee would have engaged in under the
circumstances * * * [is] not employment misconduct.” Id. The misconduct definitions set out in the act
are exclusive “and no other definition shall apply.” Minn.
Stat. § 268.095, subd. 6(e) (2004).

Absence from work
under circumstances within the control of the employee, including incarceration
following a conviction for a crime, has been determined to be misconduct
sufficient to deny benefits. Smith v. Am. Indian Chem. Dependency
Diversion Project, 343 N.W.2d 43, 46 (Minn.
App. 1984); cf. Grushus v. Minnesota
Mining & Mfg. Co., 257 Minn.
171, 176, 100 N.W.2d 516, 520 (1960). In
Grushus v. Minnesota Mining & Manufacturing Co., we found that
an employee’s incarceration did constitute
misconduct such that he should be denied unemployment benefits. Id. Grushus was unable to accept an offer of
employment following a lay-off because he was incarcerated on burglary and
larceny charges. Id.at 172, 100 N.W.2d at 517-18. The agency then administering the state’s
unemployment benefits program determined that his incarceration did not
disqualify him for benefits from the time he was released from custody. Id., 100
N.W.2d at 518.We reversed because we found that
Grushus’s failure to accept the offer of employment was due to his own
fault. Id.
at 176, 100 N.W.2d at 520. Importantly,
though, we declined to adopt a rule that absenteeism resulting from
incarceration was misconduct as a matter of law. Instead, we directed the agency to base its
determinations “upon the facts in each particular case, [leaving] the
commissioner * * * with the responsibility of finding the facts as to ‘good
cause’ and ‘fault’ within the intent and purpose of the act.” Id.

We turn to the
facts of this case to determine whether the employee engaged in
misconduct. The first statutory definition
of misconduct is conduct “that evinces a serious violation of the standards of
behavior the employer has the right to reasonably expect of the employee.” Minn. Stat. § 268.095, subd. 6(a)(1). This definition is an objective
determination: was the employer’s
expectation for the employee reasonable under the circumstances? The court of appeals applied this definition
and determined that because the absenteeism resulted from Jenkins’ criminal
conviction it was misconduct because American Express was not obligated to
verify Jenkins’ employment. Jenkins, 702 N.W.2d at 914. The employer in this case does not argue that
Jenkins’ off-the-job behavior violated its standard of behavior for its
employees. Rather, the employer contends
that it was the simple fact of Jenkins’ failure to report to work that violated
the employer’s reasonable expectation.

But the facts here
lead us to conclude that it was unreasonable for the employer to expect Jenkins
to report to work by April 26: the
employer allowed Jenkins to continue working between the time of her conviction
in March and the time she reported to the workhouse in April; the employer knew
in advance of April 18 that Jenkins would be able to participate in a
work-release program if the employer verified her employment; the employer told
Jenkins that employees in the past had been allowed to participate in
work-release programs; the employer told Jenkins that she would be able to
continue working while she served her sentence; Jenkins and others provided the
employer with the name and phone number of the person to contact to verify
Jenkins’ employment; and the employer
failed to verify Jenkins’ employment despite good faith efforts on the part of
Jenkins and others to obtain the verification.

Jenkins’ case is
distinguishable from cases in which absenteeism due to incarceration was found
to be misconduct: Grushus;Smith
v. American Indian Chemical Dependency Diversion Project;and the Colorado case the
court of appeals relied on specifically, Smith
v. Industrial Claim Appeals Office of the State of Colorado, 817 P.2d 635,
636 (Colo. Ct. App. 1991). In all three
of those cases, the claimant simply failed to show up at work because he had
been incarcerated. See Grushus, 257 Minn.
at 172, 100 N.W.2d at 517-18 (failing to respond to a recall notice because he
was in jail); Smith v. Am. Indian Chem.
Dependency Diversion Project, 343 N.W.2d at 44 (missing three days of work
because of incarceration); Smith v.
Indus. Claim Appeals Office of the State of Colorado, 817 P.2d at 636
(failing to report to work because he was in jail). In both of the Smith cases, the claimant did not contact his employer until after he had missed work because he had
been incarcerated. 343 N.W.2d at 44; 817
P.2d at 636. The Grushus case also involved deception to the employer as to the
reasons for the claimant’s inability to return to work. 257 Minn.
at 172, 100 N.W.2d at 517-18.

For the above
reasons, we conclude that the first statutory definition of misconduct relied
on by the court of appeals is not satisfied.

The second
statutory definition of misconduct is whether the employee “demonstrate[d] a
substantial lack of concern for [her] employment.” Minn. Stat. § 268.095, subd. 6(a)(2). The ULJ in this case determined that “Jenkins
was discharged for employment misconduct as it was her conduct which caused her
incarceration. Her conduct was
intentional and displayed clearly a substantial lack of concern for her
employment.” Essentially, the judge
concluded that the assault Jenkins committed represented misconduct from which
Jenkins could not redeem herself in that Jenkins’ criminal act that resulted in
jail time was misconduct as a matter of law for unemployment benefit
purposes. This type of conclusion is not
permitted by our case law. Under Grushus the inquiry must focus on the
facts in this particular case as to whether Jenkins’ misconduct was established
by evidence that demonstrates a substantial lack of concern for her employment. 257 Minn.
at 176, 100 N.W.2d at 520.

Committing a crime
that results in a period of incarceration may be evidence that an employee
lacked concern for her employment. In
this case, however, there is substantial evidence that Jenkins’ inability to
report to work was not caused by a substantial lack of concern for her
employment. The record establishes that
Jenkins made diligent efforts to report to work. She informed her employer of her conviction
and the availability of work release to allow her to continue her employment;
she obtained a verbal assurance from the employer that the employer would
cooperate with the work-release program; as soon as she became aware that she
would not be able to report to work because her employment had not been
verified, she made every effort to contact the employer; and she provided her
employer with the necessary information to permit her release from the
workhouse. The evidence as a whole amply
demonstrates that she engaged in significant attempts to report for work and
continue her employment. Her conduct
does not demonstrate a substantial lack of concern for her employment. As noted above, this case is distinguishable
from the Grushus and Smith cases relied on by the court of
appeals because Jenkins established that she could have come to work despite
her incarceration.

We do not hold
that an employer that refuses to participate in the Huber program will always
be estopped from claiming employee misconduct in a subsequent claim for
unemployment compensation benefits.
Under our holding, an employer remains free to contest an unemployment
compensation claim on the basis of employee misconduct if the underlying
conviction or the absence from work demonstrates a substantial lack of concern
for the employment under Minn. Stat. § 268.095, subd. 6(a)(2) or,
alternatively, there was aggravated misconduct under Minn. Stat. § 268.095,
subd. 6a (2004).

The department’s
argument that under anything but a very narrow rule accounting for the
employer’s reasonable expectations an employer will be responsible to take any
of a variety of actions to ensure an employee’s ability to work (furnishing a
bus pass, securing housing, or child care, etc.) is unavailing. It is reasonable for an employer to expect an
employee to make the arrangements within his or her power to facilitate his or
her employment. In Prickett we decided—after a careful review of the facts and prior
to the integration of the employer’s reasonable expectations into the
misconduct definition—that it was not misconduct for an employee to miss work
where he only had three days to arrange for child care in response to a shift
change. 518 N.W.2d at 605. The Prickett
decision did not establish a rule that an employer must provide child care
to facilitate an employee’s attendance.
Likewise, our decision here does not preclude employers from claiming
misconduct because an employee was in jail and unable to continue working while
on work release. Whether those
circumstances justify a finding of misconduct, per Grushus, will be judged on those facts.

The department
also suggests that the employer might, by failing to perform some ministerial
duty, sacrifice the “right” to expect an employee to observe some certain
standard of behavior. But we emphasize,
again, that we are not establishing a rule that employers must allow an
employee to continue in her or his employment while on work release. Indeed, the duty to ensure that work-release
sentences are executed remains on the sheriff, not on the employer, and nothing
in our ruling here changes that. SeePeterson
v. Fred Vogt & Co., 495 N.W.2d 875, 879 (Minn. App. 1993) (weighing, as
a factor in determination that employee did not commit misconduct, employer’s
failure to make “even a minimal attempt to accommodate” employee by signing a
statement necessary for employee to continue work as a driver).

We hold that under
the facts presented, Jenkins’ absence from work was not misconduct that disqualified her from
receiving unemployment benefits. The
court of appeals’ decision is reversed.

Reversed.

C O N C U R R E N C E

ANDERSON, G. Barry, Justice (concurring).

I concur with the result.

D I S S E N T

GILDEA, Justice
(dissenting).

I respectfully dissent. Jenkins’ employer had a right to reasonably expect that Jenkins would show up for work each
day that she was scheduled. Jenkins did
not show up for work because she was in jail for committing a crime. In my view, Minnesota law does not entitle Jenkins to
unemployment benefits.

The starting point for this
statutory interpretation case is the cardinal rule that we must construe the
statute so as to give effect to all of its provisions. Smith
v. Barry, 219 Minn.
182, 187, 17 N.W.2d 324, 327 (1944) (“We have held that a statute is to be
construed as a whole so as to harmonize and give effect to all of its
parts.”). The “public purpose” of Minnesota’s unemployment
insurance program is to provide temporary financial support to workers who lose
their jobs “through no fault of their
own.”Minn. Stat. § 268.03, subd. 1 (2004)
(emphasis added). We have said that “we
cannot ignore the statement of public policy” in determining whether benefits
are available under the statute. Grushus v. Minnesota Mining & Mfg. Co.,
257 Minn.
171, 175, 100 N.W.2d 516, 519 (1960).[4] While the majority acknowledges the
legislative purpose, the result the majority reaches ignores it. Jenkins did not lose her job “through no
fault of her own.” She lost her job
because she did not show up for work.

The misconduct provision in
the statute is easily read so as to give effect to the legislative
purpose. Under the statute, an employee
who commits misconduct is not entitled to benefits. SeeMinn. Stat. §
268.095, subd. 4(1) (Supp. 2003). The
statute defines misconduct as “any intentional, negligent, or indifferent
conduct, on the job or off the job (1) that evinces a serious violation of the
standards of behavior the employer has the right to reasonably expect of the
employee * * *.” Minn. Stat. § 268.095,
subd. 6(a) (Supp. 2003). The standard of
behavior at issue in this case is showing up for work. There is no dispute that an employer’s
expectation that its employees show up for work is reasonable. There likewise is no dispute that Jenkins
violated this standard of behavior. She
was discharged because she did not come to work for six straight days. Thus, under the plain language of Minn. Stat.
§ 268.095, subd. 6(a), Jenkins’ absence from work was employee misconduct and
she is therefore “ineligible for any unemployment benefits.” Minn.
Stat. § 268.095, subd. 4.

Rather than follow the plain
language, the majority’s inquiry ignores the statutory phrase “has the right
to” included in Minn. Stat. § 268.095, subd. 6(a). As a result, the majority mistakenly contends
that the proper inquiry under the statute is whether “the employer’s
expectation for the employee [was] reasonable under the circumstances.” In posing and then responding to this
question, the majority does not give effect to all of the parts of the statute
in a manner that is either consistent with the statute as a whole or consistent
with our precedent.

The majority, in essence,
concludes that the employer forfeited its “right” to expect that Jenkins would
come to work because the employer did not verify her employment status with the
jail even though Jenkins’ supervisor told her the employer would do this. But Minnesota
law places no duty on employers to verify employment. SeeMinn. Stat. §
631.425, subd. 3 (2004) (“If the person committed under this section has been
regularly employed, the sheriff shall arrange for a continuation of the
employment insofar as possible without interruption.”). Whatever we may think about Jenkins’
supervisor’s statements, we are not evaluating whether Jenkins should have been
terminated or whether it was “fair” for her employer to terminate her. See
Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989)
(“The issue in this action is not whether Abbott should have terminated Nurse
Ress, but whether, now that he is unemployed, he should be denied unemployment
compensation”). This is especially so
because the legislature has specifically provided that “[t]here shall be no
equitable or common law * * * allowance of unemployment benefits.” Minn. Stat. § 268.069, subd. 3 (2004).

Jenkins’ employer had the
right to reasonably expect that Jenkins would show up for work. When Jenkins did not show up for six straight
days, her absence was employee misconduct and she is not entitled to
unemployment benefits.

I would affirm.

[1] Huberty did not participate in the
administrative hearing on Jenkins’ case, but Jenkins introduced the letter he
had written describing his involvement in Jenkins’ efforts to secure work
release. Reflecting the expedited nature
of unemployment benefit proceedings, the applicable rules anticipate the need
to consider all of the circumstances of an employee’s departure in reaching
unemployment benefits qualification determinations, and specifically allow
hearsay evidence in keeping with that goal.
Minn.
R. 3310.2922 (2005).

[2]Markel
and Schmidgall both refer to the
determination made by “the commissioner.”
479 N.W.2d at 383; 644 N.W.2d at 803.
At the time of the department’s review of Jenkins’ case, the statutory
title of the person conducting the review of proceedings under Minn. Stat. §
268.105, subd. 2(a) (2004) was “senior unemployment review judge.”

[3] Because Jenkins was discharged in
April 2004, the 2003 version of the statute applies. In executing changes made by the 2003
legislature to section 268.095, the revisor’s office mistakenly changed the
term “disqualified from” to “ineligible for” in subdivisions 1, 4, 7, and
8(a). See Act of May 30, 2003, 1st Spec. Sess.,
ch. 3, art. 2, § 20(j), (k), 2003 Minn. Laws 1460, 1477 (directing revisor
to change “disqualified from” to “ineligible for” only in Minn. Stat. §
268.095, subd. 12, and to recodify the subdivision to Minn. Stat. § 268.085,
subd. 13b); Minn. Stat § 268.095, subds. 1, 4, 7, 8(a) (2004)
(“disqualified from” restored). Since
the ULJ incorrectly referenced and seemingly relied on the 2004 version of the
statute (wherein the error was rectified), there is no indication that the
revisor’s error affected the outcome of Jenkins’ case.

[4] The majority relies on the discussion
of “good cause” in Grushus and the
discussion of the employee’s “good faith efforts” in Prickett. In my view, such discussion
has no relevance under the current version of the statute. As we have noted, prior to 1997, “employment
misconduct was undefined by statute.” Houston v. Int’l Data Transfer Corp., 645
N.W.2d 144, 149 (Minn.
2002). In contrast to Grushus and Prickett, the question before us in this case does not require that
we utilize common law definitions of “misconduct.” The legislature has provided the definition
in the statute and our only task is to apply that definition.